Educational Tariff Certified by Copyright Board Upheld by Federal Court of Appeal

The Federal Court of Appeal released an important decision on Friday ruling on the subject of fair dealing in the K-12 educational sector. At issue was whether the Copyright Board erred in holding that when teachers copy books and other copyright materials for classroom use such copying is not covered by the fair dealing exception for private study. The Court dismissed the judicial review application holding that the “Board laid out the appropriate test from CCH and, through clear and comprehensible reasons, came to a justifiable conclusion. I see no reviewable error in respect of this issue.”

In giving reasons for decision, Trudel JA speaking for the Court made a number of important findings.

The Court confirmed the holding in the CCH v Law Society case that in order to show that a dealing is fair under Section 29 of the Copyright Act, a defendant must prove both: (1) that the dealing was for the purpose of either research or private study and (2) that it was fair. In making this holding the Board rejected the contention of the intervener the Canadian Association of University Teachers (CAUT) that the categories of fair dealing allowable purposes under the Act are open ended and that there is no need to establish that the dealings in issue are for the purpose of private study or research.

The Court also confirmed that the second step, whether the dealing is fair, “is a question of fact and depends on the facts of each case”. Repeating what the Supreme Court said in CCH, the Court held that fairness is determined by examining six non-exhaustive factors: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

The Board accepted as fact that the copies made and which were in issue in the JR were made for an allowable purpose. Accordingly, since the allowable purpose was not in issue, the Court focused on whether the Board had erred in finding that copying for classroom use was fair.

In looking at the purpose of the dealing, the Court accepted that “private” study could not be equated with non-commercial study. “Private study” means “study by oneself”. “When students study material with their class as a whole, they engage not in ‘private’ study but perhaps just ‘study’”.

After canvassing the jurisprudence from Canada, UK, New Zealand, and the US, the Court also held that in assessing whether a dealing is fair, a Court must make an assessment of the true motive or purpose of the alleged infringer.

On the facts, the Court held the Board was reasonable to take into consideration whether a student requested the copies him or herself or whether the teacher made the copies at his or her own initiative. The Board was also entitled to find that when a student is instructed to read the material, it is likely that the purpose of the copying was for classroom instruction rather than the student’s private study.

The Court also held that Board’s findings with respect to the other CCH factors were reasonable.

In terms of the character of the dealing, the applicants point to testimony that students normally destroy or lose photocopies; however, the Board made a finding of fact that students often keep their copies in binders for an entire school year. In terms of the effect of the dealing, the Board found on the evidence that it was likely that the dealing hurt textbook sales. While the Board admitted there was no conclusive evidence to this effect, it did not act unreasonably in considering the overall decline in sales when conducting its fairness analysis.</

On a separate issue, the Court found that the Board failed to make a finding of fact as to whether certain claimed exceptions under Section 29.4 were made available “in a medium appropriate for the purpose”. That issue was remitted back to the Board for determination.

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